IN THE HIGH COURT OF LESOTHO
Held at Maseru
CIV/APN/315/2014
In the matter between:
RABUKA CHALATSE
1ST APPLICANT
KOKOTO MATHABA
2ND APPLICANT
And
THE ACTING CHIEF JUSTICE
1ST RESPONDENT
THE CHIEF MAGISTRATE
2ND RESPONDENT
MINISTER OF LAW, PARLIAMENTARY
AND CONSTITUTIONLA AFFAIRS
3RD RESPONDENT
MINISTER OF JUSTICE, HUMAN RIGHTS
AND CORRECTIONAL SERVICES
4TH RESPONDENT
THE ATTORNEY GENERAL
5TH RESPONDENT
CORAM:
S.P. SAKOANE AJ
HEARD:
15 AUGUST 2014
DELIVERED:
18 SEPTEMBER 2014
SUMMARY
Rule-making powers of the Chief Justice – whether such
powers ae ultra-vires the Act under which the powers are
conferred – held that the rules made are intra-vires the Act.
Administrative powers of the Registrar – whether such powers
involve assignment of duties to judicial officers under the
Administration of the Judiciary Act, 2011 – held such powers
are only exercisable over the members of staff of the judiciary
and not judicial officers.
ANNOTATIONS:
CITED CASES:
LESOTHO
Leenhardt v. Monoko (1926-1953) H.C.T.L.R. 229 (H.C.)
CANADA
Valente v. The Queen [1985] 2 S.C.R. 673
STATUTES:
The Judicial Commissioners Proclamation No.25 of 1950
The Interpretation Act N.19 of 1977
The Judicial Commissioners (Amendment) Act No.19 of 1988
The Subordinate Courts Act No. 9 of 1988
The Administration of the Judiciary Act No.16 of 2011
The Subordinate Court (Amendment) Rules, 2013 (Legal Notice No. 150 of
2013)
BOOKS:
Ruth Sullivan (1994) Driedger on the Construction of Statutes, 3 rd Edition
(Canada: Butterworths)
2
JUDGMENT
A. INTRODUCTION
[1]
The applicants in this matter are judicial commissioners in the Judicial
Commissioners’ Court. They move this Court for the following final
orders:
[2]
“(a)
That the promulgation of rule 2(b) 2 A and 2 E (1) (c)
of the Subordinate Court (Amendment) Rules – Legal
Notice No.150 of 2013, by the 1st respondent shall not
be declared ultra-vires the statutory powers conferred
upon the 1st respondent by section 81 of the
Subordinate Courts Act No.9 of 1988, sections 2 and
4 of the Judicial Commissioners Proclamation No25
of 1950 as amended by Act No.19 of 1988 and/or
Administration of the Judiciary Act No.16 of 2011;
(b)
That the provisions of rule 2 (b) 2A and 2E (1) (c) of
the Subordinate Court (Amendment) Rules – Legal
Notice No.150 of 2013 shall not be declared null and
void ab initio as they are in contravention of the
Administration of the Judiciary Act No.16 of 2011;
(c)
Directing the respondents to pay costs of suit herein;
(d)
Granting applicants such further and/or alternative
relief as it may deem just.”
The challenge to the rule-making powers of the Acting Chief Justice is on
four grounds:
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(1)
That such powers are ultra-vires section 81 of the Subordinate
Courts Act, No.9 of 1988.
(2)
That such powers are ultra-vires sections 2 and 4 of the Judicial
Commissioners Proclamation No.25 of 1950 as amended by Act
No.19 of 1988.
(3)
That such powers are ultra-vires the Administration of the Judiciary
Act No. 16 of 2011.
(4)
That the impugned rules promulgated and published in Legal Notice
No.150 of 2013 are null and void for being in contravention of the
Administration of the Judiciary Act, No. 16 of 2011.
B. THE FACTS
[3]
The factual bases for the challenge can be summarized as follows:
(a)
On 4th April 2014 the 1st applicant received a letter from the Chief
Magistrate Northern Region who was acting as the Chief Magistrate
Central Region. The relevance and importance of her acting as Chief
Magistrate Central is that the applicants were territorially within her
region and under her administrative jurisdiction.
4
(b)
The letter to the 1st applicant referenced JUD/P/50483 states in part
that:
“Following the changes which have been implemented by
the Honourable Acting Chief Justice we had thought that
you would assume your new role in the Magistracy
commencing January 2014, we are now in March and you
have not made any move. This is humbly to advise you that
we have seen it proper that you assume your new role from
1st April 2014 …”
(c)
On 6th April 2014 – that is upon receipt of the letter, the legal
representatives of 1st applicant wrote back to the Acting Chief
Magistrate Central Region enquiring as follows:
“Client informs us that he is a Judicial Commissioner in terms
of the Laws of Lesotho. He instructs us to inquire from your
good office as to where does your authority and power
emanate for advising and/or directing him to assume duties in
the Magistrate Court.
We would be thankful if your response could reach us by end
of business on 7th April 2014 in order to advice client
accordingly as we sense the urgency in your letter under
reference.”
(d)
It appears that the legal representative’s letter was received on 7 th
April, 2014 but was left begging for any response.
(e)
On 24th July 2014 an urgent application was launched in this Court
accompanied by a certificate of urgency stating shortly the grounds
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of urgency being that the impugned rules promulgated by the Acting
Chief Justice on 11th October, 2013 were:
“already operational and they seek to place the
administrative and supervisory authority of the 2nd
respondent over the applicants. She can exercise her powers
under the subrules anytime. The continued operation of
these rules is prejudicial to the applicants as they are in
contravention of the Administration of the Judiciary Act
No.16 of 2011.”
(f)
On 28th July, 2014 counsel for both sides appeared before Moahloli
AJ. and a road map agreed to regarding the filing of both sets of
affidavits and heads of argument by 8th August 2014. There was no
interim relief granted as prayed for in the notice of motion.
(g)
The answering affidavit in opposition was sworn to by the 2 nd
respondent who advanced three main propositions:
(i)
the Registrar exercises administrative control over
members of the staff of the Judiciary only and not over
the applicants as judicial officers;
(ii)
the Chief Magistrate exercises administrative and
supervisory control over applicants and can assign a
Judicial Commissioner to a Subordinate Court for
effective administration of justice; and
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(iii)
the Chief Justice is empowered by section 81 of the
Subordinate Courts Act, 1988 to make rules including,
but not limited to, rules regulating the practice and
procedure but also rules regarding any matter which
appears to the Chief Justice to be necessary and
suitable.
C. SUBMISSIONS
[4]
Mr. Tšenoli, for the applicants contends that:
(a)
Prior to 1993 the Chief Justice had administrative control over
members of the judiciary, that is, all judicial officers. This was put
to an end by Parliament when it enacted the Administration of the
Judiciary Act, 2011 in terms of which those administrative powers
were removed and transferred to the Registrar as the Judicial
Administrator.
(b)
The impugned rules wrongly reverse such removal of
the
Registrar’s administrative and supervisory authority over the
applicants as Judicial Commissioners and vests such authority to the
Chief Magistrate.
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(c)
It is wrong for the Chief Magistrate to argue that she can assign a
Judicial Commissioner to any Subordinate Court for effective
administration as that is a power that belongs exclusively to the
Registrar as the Judicial Administrator.
(d)
The rule-making powers of the Chief Justice under section 81 of the
Subordinate Courts Act, 1988 and section 29 of the
Administration of the Judiciary Act, 2011 are confined only to the
class of rules regulating practice and procedure as well as
effectuating the objects of the latter Act.
[5]
Mr. Motsieloa, for the Crown, counters by submitting that:
(a)
Whatever administrative powers the Registrar is clothed with under
the Administration of the Judiciary Act, 2011 such are confined
to management of the administrative affairs of the courts and control
over the staff of the Judiciary as opposed to the members of the
Judiciary.
(b)
The applicants’ interpretation which seeks to suggest that the
Registrar as qua “Chief Administrator of the Judiciary” exercises
administrative control over members of the judiciary is fatally
flawed and is disrespectful of hierarchical authority in the Judiciary
8
as it would mean that both members of the higher and lower
judiciary fall under the administrative and supervisory direction and
control of the Registrar, Deputy Registrars and the Judicial
Administrator.
(c)
The rule-making powers of the Chief Justice are exercisable in
relation to two sets of rules:
(i)
rules regulating practice and procedure; and
(ii)
other rules regarding any matter necessary and
suitable.
(d)
The impugned rules have nothing to do with the administrative
functions of the Registrar. They are directed, among others, to the
assignment of applicants to their magisterial functions.
D. ANALYSIS
[6]
The enquiry centers on three main issues:
(a)
whether the impugned rules are ultra-vires section 81 of the
Subordinate Courts Act, 1988;
9
(b)
whether the 2nd respondent had no power and/or authority under the
impugned rules to direct 1st applicant to assume duties as a
magistrate;
(c)
whether the Registrar has administrative and supervisory power over
the applicants.
[7]
Section 81 of the Subordinate Courts Act, 1988 provides as follows:
“(1) The Chief Justice may from time to time, by notice in the
gazette, make rules,
(a) regulating the practice and procedure of subordinate
courts in all matters before such courts;
(b) prescribing the time within which any requirement of
the rules is complied with;
(c) prescribing the fees payable in, the costs and charges
of, and incidental to, any proceedings in subordinate
courts;
(d) prescribing the forms required to be used under this
Order;
(e) regarding any other matter which appears to the Chief
Justice to be necessary and suitable.
(2) Different rules may be made in respect of different classes
of court.”
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[8]
Sections 2 (2) and 4 of the Judicial Commissioners Proclamation, 1950
as amended per the Judicial Commissioners (Amendment) Order, 1988
reads as follows:
“2 (2) The Courts of Judicial Commissioner shall be
Subordinate Courts of the Resident Magistrate, and, in
addition to any other jurisdiction conferred by this or any
other Proclamation shall possess and exercise throughout the
Territory all the jurisdiction, power and authority vested in
Subordinate Courts of the Resident Magistrate by the
Subordinate Courts Order, 1988, and any other law
3 (1) ..……..
3 (2) Resident Magistrates shall be ex-officio Judicial
Commissioners in the areas of their jurisdiction.
4. (1) Save as otherwise provided in this Proclamation or any
other law, all the provisions of the Subordinate Courts Order,
1988 which apply or relate to Subordinate Courts of the
Resident Magistrate shall mutatis mutandis apply to the
Courts of the Judicial Commissioners: Provided that no civil
suit or action or other civil proceedings shall be commenced
in the said Courts.
(2) Every summons, subpoena, writ, warrant or other
process issued out of the Courts of Judicial Commissioners
shall be of force throughout the Territory, and may be served
or executed in any district through a messenger of any duly
warranted central and local court throughout Lesotho.”
[9]
I quote these sections because they are the ones whence come the powers
of the Acting Chief Justice to make the impugned rules. The relevant rules
which seems to have triggered unhappiness on the part of the applicants
are Rules 2A and 2D which read thus:
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“2A. (1) A chief magistrate shall, under the general direction
of the Chief Justice, exercise administrative and supervisory
authority over a judicial commissioner in his area of
jurisdiction.
(2) In exercise of the authority under subrule (1), the chief
magistrate may, acting in consultation with the Chief Justice,
assign a judicial commissioner to any subordinate court for
effective administration.
…………
2D (1) A judicial commissioner shall be an ex officio resident
magistrate in his area of jurisdiction.
(2) A judicial commissioner shall, in addition to the judicial
powers vested in the judicial commissioner under section 4 of
the Judicial Commissioner’s Proclamation, 1950, hear all
matters within the jurisdiction of a resident magistrate in
terms of subrule (1).
(3) A case under this rule shall be assigned to a judicial
commissioner by the roll office of each court subject to the
direction of a magistrate in charge of the office.”
[10] It is contended, on behalf of the applicants, that these rules are ultra-vires
the Chief Justice’s rule-making powers under section 81 of the
Subordinate Courts Act, 1988 quoted earlier. The proposition advanced
is that:
“In short, the 1st respondent did not adhere to the principle of
ejusdem generis, which means of the same kind, class, or
nature. The said principle of ejusdem generis states that
where a law lists specific classes of persons or things and then
refers to them in general, the general statements only apply to
the same kind of persons or things specifically listed.”
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[11] I reject this proposition as it misconceives the application of the ejusdem
generis rule on the facts of this case. The legislature has clothed the Chief
Justice with two categories of powers as correctly submitted by Mr.
Motsieloa: power to make rules on practice and procedure on the one hand,
and on the other, power to make rules regarding any other matter which
appears to be necessary and suitable. These two types of powers are found
in section 81 (1) (a) and (e) of the Act.
[12] The proposition made by Mr. Tšenoli conflates the two types of powers –
the specific power and the general power – and suggests that the general
must be restricted by the particular. I find this to be untenable. The natural
meaning of the words “regarding any other matter which appears to the
Chief Justice to be necessary and suitable” drives me to an interpretative
approach which expands the scope of his powers well beyond the confines
of rules for practice and procedure.
This is the approach which is
sanctioned by section 23 (a) and (d) of the Interpretation Act, No.19 of
1977 which enacts that:
“(a)
(b)
(c)
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when any subsidiary legislation purports to be in
exercise of a particular power or powers, it shall be
deemed also to be made in exercise of all other powers
thereunto enabling;
…………
………..
(d)
where an Act confers powers on an authority to make
subsidiary legislation for any general purpose, and also
for any special purpose, the enumeration of the special
purposes shall not be deemed to derogate from the
generality of the powers conferred with reference to the
general purpose;”
[13] It must also be remembered that the ejusdem generis rule, otherwise called
the limited class rule, is a rule of interpretation and not a binding rule of
law. It is a mere application of a contextual principle that serves as a
starting point and not the concluding point of analysis. It can, therefore,
be overridden by contextual features or some overriding principle or policy
(Ruth Sullivan (1994) Driedger on the Construction of Statues 3rd
Edition (Canada: Butterworths) p. 209)
[14] The only cognizable restrictions that hedge around the Chief Justice’s
powers must, therefore, be those trite in law, namely, that the rules must
not contradict or be inconsistent with an Act of Parliament or override the
common law. (Section 23 (b) of the Interpretation Act, 1977; Leenhardt
v. Monoko (1926-1953) H.C.T.L.R. 229 (H.C.))
[15] The impugned rules serve the purpose of assigning to the judicial
commissioners the functions of Resident Magistrates, which functions are
already provided for under the provisions of the Judicial Commissioners
Proclamation, 1950 as amended in 1988. This being so, there is nothing
14
illegal in assigning duties to the applicants as provided for in the impugned
rules. I hold that these rules are not ultra-vires the statutory rule-making
powers of the Chief Justice. They are intra-vires.
[16] I now turn to the question of whether administrative and supervisory
control by the Chief Justice and Chief Magistrate over the applicants has
been wrested away from them and given to the Registrar in terms of
Administration of the Judiciary Act, 2011. The contention of Mr.
Tšenoli is that the impugned rules “seek to place the administrative and
supervisory authority of the 2nd respondent over the applicants, yet it is the
Registrar who can exercise that authority”. It is, therefore, being suggested
that the rules contradict an Act of Parliament contrary to section 23 (b) of
the Interpretation Act, 1977.
[17] The object of the Administration of the Judiciary Act, 2011 as stated in
section 2, “is to provide for an autonomous and accountable administration
of the judiciary, the judiciary service, a budget of the courts and incidental
matters.”
The Registrar’s functions as defined in section 6(2) is to
“exercise administrative and day-to-day control over the members of staff
of the judiciary.” And in carrying out these functions, “the Registrar shall
not be subject to the direction or control of any person, institution or
authority except the President of the Court of Appeal in matters concerning
15
the Court of Appeal and the Chief Justice in matters concerning the
High Court and other courts.” (Section 6 (5)). [Emphasis supplied]
[18] From the aforegoing sections, two issues admit of no doubt:
(a)
the Registrar’s administrative powers and day-to-day control
are restricted to members of staff of the judiciary only;
(b)
in carrying out any functions under the Act, the Registrar is
subject to the direction and control of the Chief Justice in
matters concerning Subordinate Courts inclusive of the
Courts of Judicial Commissioners.
[19] The members of staff of the judiciary to whom reference is made are:
“(a)
a Judge’s Clerk
(b)
the Master of High Court
(c)
the Judicial Administrator
(d)
a Clerk of Court in Subordinate Court, Judicial
Commissioner’s Court, Central or Local Court;
(e)
any person appointed as a member of staff of the
Judiciary.”
[20] The contention of Mr. Tšenoli does not find any textual support in these
provisions. It is a contention whose effect is to subordinate his clients, as
16
judicial officers, to the control of the Registrar as the chief administrative
officer of the Judiciary. This much is articulated by applicants themselves
in paragraph 5 of the founding affidavit where it is averred that the Judicial
Commissioner’s Court is under the administrative control of the Registrar
and not the Chief Justice or Chief Magistrate. I have no hesitation in
rejecting this contention as it flies in the face of the clear provisions of the
Act.
[21] But more fundamentally, the applicants’ case questions the institutional
independence of the courts in respect to matters of administration.
Constitutionally, it is the heads of the courts who have control over
assignment of judges, magistrates and judicial commissioners as well as
sittings, court rolls and other related matters of allocation of court rooms
and direction of the administrative staff engaged in carrying out these
functions. (Valente v. The Queen [1985] 2 S.C.R. 673 paras 47-49) This
is but one of the essential conditions of judicial independence which, in my
view, the Act seeks to promote, protect and fulfil.
[22] Therefore, the complaint by the applicants that it is not the Chief Justice or
Chief Magistrate but the Registrar who has powers to assign them judicial
functions and even redeploy them is without merit and is rejected.
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E. DISPOSITION
[23] I, therefore, dismiss this application with costs.
__________________
S.P. SAKOANE
ACTING JUDGE
For the Applicants
For the Respondents
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:
:
P.V. Tšenoli
R. Motsieloa